Memorial on Behalf of the Respondent

TEAM CODE- N-024

IN THE HON’BLE SUPREME COURT OF INDIA, AT NEW DELHI.

WRIT PETITION NO.

Of 2013

MR. BIDYUT CHARAN MOHANTY PETITIONER VS. UNION OF INDIA & STATE OF ODISHA RESPONDENT

29th BAR COUNCIL OF INDIA TRUST INTER UNIVERSITY, MOOT COURT COMPETITION 2013-2014

SUBMITTED IN THE REGISTRY OF THE COURT ON BEHALF OF THE RESPONDENTS -UNION OF INDIA & STATE OF ODISHA –

MEMORIAL ON BEHALF OF RESPONDENTS 29th BCI Moot Court Competition

TABLE OF CONTENTS LIST OF ABBREVIATIONS……...……………………………………...………………… III INDEX OF AUTHORITY.......................................................................................................IV STATEMENT OF JURISDICTION........................................................................................VI STATEMENT OF FACTS.....................................................................................................VII STATEMENT OF ISSUES.....................................................................................................IX SUMMARY OF ARGUMENTS..............................................................................................X DETAILED PLEADING………………………………………………………...……………1

ISSUE NO. 1: Whether the Petition is maintainable?.................................................................1 ISSUE NO.2 - Whether a Writ Can Be Issue to Government of India on Matter Relating to Defence?.....................................................................................................................................4 PRAYER....................................................................................................................................6

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LIST OF ABBREVIATIONS



EIA

Environment Impact Assessment.



HC

High Court.



AIR

All India Reporter.



SC

Supreme Court.



SCC

Supreme Court Cases.



IIT

Indian Institute of Technology.



Subs.

Substituted.



Sec.

Section.



u/s

under section.



L.A.

Land Acquisition



NPP

Nuclear Power Plant



DRDO

Defence Research & Development Organisation



SNF

Spent Nuclear Fuel.

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INDEX OF AUTHORITY S.NO.

1

PARTICULARS

STATUTORY COMPILATIONS 1. THE CONSTITUTION OF INDIA. 2. EIA NOTIFICATION, 2006. 3. THE ATOMIC ENERGY ACT, 1962. 4. OFFICIAL SECRET ACT, 1923. 5. THE LAND ACQUISITION ACT, 1894.

2

6.

ENVIRONMENT (PROTECTION) RULES, 1986.

7.

DEFENCE OF INDIA ACT, 1962.

BOOKS REFERRED 1. Dr. J.N. Pandey, The Constitutional Law of India, Central Law Agency, 48th Edition. 2. M.P. Jain, Indian Constitutional Law, 256, (LexisNexis Butterworths Wadhwa, Nagpur, 2010). 3. P.K. Sarkar, Law of Acquisition of Land in India, Eastern Law House, 2nd Edition. 4. Justice Justice T S Doabia , Environmental and Pollution Laws in India, (LexisNexis Butterworths Wadhwa) 2nd Ed.

5.

Justice P.S.Narayana, Concise Commentary on the Land Acquisition Act, 1894, Jain Book Agency, 2011.

3

DICTIONARIES & LAW LEXICONS: i.

Oxford Dictionary, 6th Ed., Oxford University Press, London, 2003.

ii.

GARNER, BRYAN A.: “A Dictionary Of Modern Legal Usage”, Oxford University Press 2nd ed. Oxford (1995)

iii.

Greenberg, Daniel & Alexandra, Millbrook: “Stroud’s Judicial Dictionary of Words & Phrases”, VOL. 2, 6th ed., London: Sweet & Maxwell (2000).

4

WEBSITES REFERRED:

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i.

www.findlaw.com

ii.

www.indiankanoon.com

iii.

www.indlawinfo.org

iv.

www.jstor.org.

v.

www.judis.nic.in

vi.

www.lawsofindia.org

vii.

www.manupatra.com

viii.

www.scconline.com

ix.

5

www.supremecourtcaselaw.com

CASES REFERRED 1. Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar, 1993 Supp (1) SCC 529. 2. G.Sundarrajan v. Union of India & ors., Civil Appeal No. 4440 of 2013. 3. Asif Hameed v. State of Jammu and Kashmir AIR 1989 S.C. 1899. 4. Tehri Bandh v. State of U.P (1992) Supp. (1) S.C.C. 44. 5. Vacher & Sons v. London Society of Compositors (1913) AC 107(118)HL. 6. CCSU v. Min (1984) 3 All ER 935 (954) HL. 7. M.P. Oil Extraction and Another v. State of M.P. and Ors (1997) 7 SCC 592. 8. M/s Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635. 9. Dhampur Sugar (Kashipur) ltd. v. State of Uttranchal and Ors., (2001) 3 SCC 635.

10. Delhi Bar Association v. Union of India and Ors., (2008) 13 SCC 628.

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STATEMENT OF JURISDICTION The petitioners have approached the Hon’ble Supreme Court under Article 32 of the Constitution of India. The respondents respectfully submit to the jurisdiction invoked by the petitioners. Art 32 reads as hereunder: Remedies for enforcement of rights conferred by this Part: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

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STATEMENT OF FACTS THE DECISION OF THE GOVERNMENT OF INDIA To install a Nuclear Power Plant in the State of Odisha. PURPOSE 1. Uninterrupted supply of power to DRDO Establishment for testing base (launching pad) Intercontinental Ballestic Misile (ICBM) capable of carrying nuclear weapons. 2. Supply Power to Paradeep Shipyards, which is dedicated to manufacturing submarines. Having acquired Russian nuclear submarine, the Government of India decided to develop this shipyard as the maintenance yard for the nuclear submarine, as well. 3. Balance of the power may be used for the Paradeep Port establishment and township. BALASORE The area of Balasore is rural with high density of population. The district is agriculturally very important for the economy of Odisha. Balasore is logistically important for the defence of the country to maintain balance of power with China using the Yangoon open sea zone as the advanced location for military logistics of China. NOTIFICATION BY GOVERNMENT The Government of Odisha notified the land in the district of Balasore near the sea covering 30,000 acres presently owned and occupied by farmers producing three crops in a year. Soon the estate acquisition notice was given. AGITATION BY FARMERS AND NATIONAL MAINSTREAM INTELLECTUAL There has been continuous agitation by the people of Odisha in general and Balasore farmers in particular. National mainstream intellectuals also joined the agitation especially indicating that the district is susceptible for high tide and cyclonic weather. Naturally, such a plan for establishing nuclear reactor creates panic among the farming community of the State. It is also argued that Bay of Bengal is a very sensitive and geophysically disturbed area for earthquake in the sea deep down the seabed and capable of causing “tsunami”. RESOLUTION TO SHIFT THE PLANT TOWARDS SOUTH At the height of agitation, the opposition Congress Party wanted to move a resolution in the Legislative Assembly to shift the proposal towards South Odisha. But the resolution was not

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permitted. As a result the sessions in the Assembly has been shelved by the opposition members. PIL FILED BY A LOCAL LAWYER- ENVIRONMENTALIST At this stage, a local lawyer-environmentalist Mr. Bidyut Charan Mohanty filed a Public Interest Litigation in the Supreme Court of India seeking appropriate writ or writs directing the Government of India and the State of Odisha, respectively, not to proceed with this project because of very high stake on public interest. The HC has issued notice to both the GOI and the State of Odisha. Hence the present Writ Petition.

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STATEMENT OF ISSUES

ISSUE 1. WHETHER THE PETITION IS MAINTAINABLE?

ISSUE 2. WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON MATTER RELATING TO DEFENCE?

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SUMMARY OF ARGUMENTS ISSUE 1. WHETHER THE PETITION IS MAINTAINABLE? The present petition is not maintainable because the welfare of the people is the supreme law as connoted by the maxim ""Salus populi suprema lex” and the safety of the state is the supreme law, and in case of any conflict, an individual must yield to the collective interest as connoted by the maxim "Republicae Supreme lex". It is vital that these two maxims should coexist harmoniously. The Land Acquisition Act, 1894, is that Procedure established by law, which grants the "appropriate government" authority to acquire land for the public purpose. All the procedures under the L.A. Act, were duly followed when the notification for the acquisition of land was given of the Balasore region. Therefore, the acquisition of land is valid in Toto. The traditional concept of locus standi has been relaxed in the Public Interest Litigation, to enforce the Fundamental Rights of those individuals who are incapable in doing so by the reason of poverty, knowledge or lack of awareness. However, the same is being misused by individuals with vested interest to file malafide petitions, hence wasting the time of the Hon'ble Court. These plethora of acts provides an aegis to the citizens of the NPP surrounding areas against any harmful and detrimental effects from the emissions of the plant, which of course are treated indefinitely. The following are few key components of the project:1. Geographical 2. Environmental Factors 3. Health 4. Waste Management 5. Threat Perception

ISSUE 2. WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON MATTERS RELATING TO DEFENCE? When land is acquired under the Land Acquisition Act, 1894 for any purpose specified therein, it is inherent by the nature of the statute itself that some or the other right in interest of the larger public welfare will have to be sacrificed. Maybe this is also the reason that the Land Acquisition Act is also referred to as Draconian Law of the Country by the critics.

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The role of Judiciary is very limited, it shall merely interpret the provisions of an enactment and where breach of fundamental rights exists, in terms of dangers of the project, cognizance maybe taken. India's National Policy has been clearly and unequivocally expressed by the legislature in the Atomic Energy Act. National and International policy of the country is to develop control and use of atomic energy for the welfare of the people and for other peaceful purposes. NPP being set up at Balasore as part of the National Policy which is discernible from the Preamble of the Act and Provisions contained therein It is most humbly submitted, when the setting up of the Nuclear Power Plant is justified from all angles, which in the instant case is being set up in the National Interest for supplying electricity to DRDO establishments to safeguard the sovereignty of the Country, such projects should not be interfered with considering the gravity of infiltration and security concerns of the Country, with porus borders. India has to race with other nations developing Nuclear Power, and co-operation of the citizens is required to finish such projects expeditiously.

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DETAILED PLEADINGS ISSUE No. 1: WHETHER THE PETITION IS MAINTAINABLE? It is most humbly submitted that, the present petition is not maintainable because the welfare of the people is the supreme law as connoted by the maxim "Salus populi suprema lex"1, and furthermore the safety of the state is the supreme law, and in case of any conflict, an individual must yield to the collective interest as connoted by the maxim "Republicae Supreme lex"2. It is vital that these two maxims should coexist harmoniously. The present case is the one where there is a need for nuclear energy for the welfare of the public and for other welfare of the people of India and for peaceful purposes3. It is further pertinent to note that recently, this Court dismissed the Public Interest Litigation filed against the setting up of a Nuclear Power Plant at Kundankulam, Tamil Nadu. It is a natural phenomenon in our country that people with vested interest manipulate the masses just to delay the projects and large number of these agitators are amongst those whose properties are being acquired. This Court in G.Sundarrajan v. Union of India4, also known as Kundankulam NPP case observed: "Court has to respect national nuclear policy of the country reflected in the Atomic Energy Act and the same has to be given effect to for the welfare of the people and the country, it is with these objectives in mind KKNPP has been set up." Furthermore, The Land Acquisition Act, 1894,(hereinafter referred to as L.A. Act) is that Procedure established by law which grants the "appropriate government" authority to acquire land for the public purpose. All the procedures under the L.A. Act, were duly followed when the notification for the acquisition of land was given of the Balasore region. Therefore, the acquisition of land is valid in Toto. It is further pertinent to note, that the traditional concept of locus standi has been relaxed in the Public Interest Litigation, to enforce the Fundamental Rights of those individuals who are incapable in doing so by the reason of poverty, knowledge or lack of awareness. But the same is being misused by individuals with vested interest to file malafide petitions, hence wasting the time of the Hon'ble Court. In the instant case it is pertinent to note that there is no violation of fundamental rights in terms of Right to clean environment enshrined under Article 21 of the

1

Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar, 1993 Supp (1) SCC 529. Ibid. 3 G.Sundarrajan v. Union of India & ors., Civil Appeal No. 4440 of 2013. 4 Ibid. 2

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Constitution in and around Balasore, Odisha. When a Nuclear Power Plant is set up, the mandates of all the precautionary Acts like Atomic Energy Act, 1962, Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution Act), 1977, Disaster Management Act, 2005, Atomic Energy (Radiation Protection) Rules, 2004, Atomic Energy (Safe Disposal of Radio Active Waste) Rules 1987 and Air (Prevention and Control Regulation) Act, 1981 etc are followed. These plethora of acts provides an aegis to the citizens of the NPP surrounding areas against any harmful and detrimental effects from the emissions of the plant, which of course are treated indefinitely. The following are few key components of the project:1) Geographical location : It is pertinent to observe that the territory of Balasore is situated in seismic Zone III5, which is comparatively lower seismic zone as compared to Nuclear Power Plants of other countries, like Japan etc. where NPP's are being established at Zones VII, VIII and IX, while Taiwan's are in VIII and IX. Thus the 20-odd nuclear power plants in India, with a generating capacity of 4, 780 megawatt (Mw), are located at much lower and safe seismic zones. Furthermore, our nuclear power plants are situated 300-2,000 km away from the tectonic Himalayan boundary, thus making it invulnerable to tsunamis and earthquakes6. It is further noted that, the location i.e. Balasore, Odisha is one of the most suitable location in terms of land disputes and territorial location. Balasore site is free from all litigations because the areas fall under the CRZ belt and there is no biosphere, historical monuments, architectural religious establishments and tribal settlements around them7. Therefore merely the acquisition of 30,000 acres i.e. 121 sq.kms out of 3806 sq.kms area will not have any implications on the agricultural economy of the state. In this regard it may be noted that as per various researches conducted by National Environmental Engineering Research Institute (NEERI), operation of NPP's do not have any adverse impact on agriculture, livestock and food security8. Lastly, water serves as a coolant in the Nuclear power plants and is required in large quantities9, and Balasore serves as an ideal location for this purpose as it is situated at the Bay of Bengal.

5

Editorial, "Quake Shadow hangs on Orissa" The Telegraph, January 03.2005. Sanjay Jog, "Indian N-Plants safe, located in less seismic zones", The Business Standard, March 13,2011. 7 Hemant Kumar Rout, "Balasore woos miffed", The Times of India, October 10, 2009. 8 Expert Group, Government of India, Report: Safety of Kudankulam Nuclear Power Plant and Impact of its Operations on the Surroundings,(Department of Atomic Energy, Dec 2011). available at, barc.gov.in (last visited on September, 05, 2013). 9 "Water & Sustainability (Volume 3): U.S. Water Consumption for Power Production - The Next Half Century," Electric Power Research Institute, Technical Report 1006786, March 200 6

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2) Environmental Factors: The problems like Poverty, malnutrition and under-employment can only be corrected through concerted effort towards economic and industrial development, thus it is essential to estimate the future electrical energy demand in light of the expected population growth. Currently Nuclear Power merely constitutes 2.6% in electricity generation while Coal/Oil/Gas constitute massive 65.1% and Hydro and other Renewable constitutes 32.3% in electricity generation10. Indian Coal reserves will deplete in 80 years and rest of the hydro potential remains untapped due to physical restrains in Himalayan Ranges. Therefore, exploitation of Nuclear Energy is the key to energy independence for India in coming centuries, which will also help in the fight against global warming at a much cheaper price11. 3) Health Factors: Nuclear Power Plants are well protected in terms of its emissions, which will be subsequently discussed. Nuclear Plants causes’ cancer, leukaemia in persons who lived near nuclear facilities is a myth. Studies and researches conducted in France, which is also home to most of the NPPs confirm that radiation from NPP's does not increase the mortality12 4) Waste Management: Management of radioactive waste in Indian context includes all types of radioactive wastes generated in the entire nuclear fuel cycle right from the mining of uranium, fuel fabrication and subsequent reprocessing of fuel spent. In consideration to the primary object of protecting human health, environment and future generation, the overall philosophy for the safe management of radioactive waste relies on the concept of i) Delay and Decay ii) Dilute and Disperse and iii) Concentrate and Contain13. These processes ensure the safe disposal of all kinds of solid, liquid and gaseous waste as per the international standards. India has further got the Capability for re-processing SNF (Spent Nuclear Fuel), experts say. Additional re-processing facilities are being set up to accelerate the program14. 4) Threat Perception : Apprehension that, setting up of these units will repeat accidents like Three Miles Island, Chernobyl, Union Carbide, Fukushima etc., are legitimate, but cannot override justification of the project. Fukushima Power Plant was built on seismic zone VII, while, Chernobyl disaster occurred due to deficiency in design. Lessons from these disasters have been learnt by humans, much stringent safeguards and measures have been adopted to

10

Supra 8. APJ Abdul Kalam & Srijan Pal Singh, Nuclear power is our gateway to a prosperous future, The Hindu, November 6, 2011. 12 C.Hill & A.Lapelanche, Overall Mortality and Cancer mortality around french nuclear sites, Nature, 347: 755757 (1990). 13 Ibid 10. 14 Supra 3. 11

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ensure that such incidents and not reported. Once the justification test is satisfied, the apprehension test is bound to fail. Thus, on the other hand these plants are only protecting rights enshrined u/A 21 of the Constitution by safeguarding larger public interest. ISSUE NO.2 - WHETHER A WRIT CAN BE ISSUE TO GOVERNMENT OF INDIA ON MATTER RELATING TO DEFENCE? It is most humbly submitted that, when land is acquired under the Land Acquisition Act, 1894 for any purpose specified therein, it is inherent by the nature of the statute itself that some or the other right in interest of the larger public welfare will have to be sacrificed. Maybe this is also the reason that the Land Acquisition Act is also referred to as Draconian Law of the Country by the critics. It is unambiguous, though with checks and balances our Constitution has inherited the principle of separation of powers. In Asif Hameed v. State of Jammu and Kashmir15, the Hon'ble Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs.” Therefore, the role of Judiciary is very limited, it shall merely interpret the provisions of an enactment and where breach of fundamental rights exists, in terms of dangers of the project, cognizance maybe taken. In Tehri Bandh v. State of U.P16, where a PIL was brought on the allegation that Government proposes to construct a dam regardless of its safety and ecological aspects, it was held that the Court is only concerned to examine whether the Government has applied its mind to the dangers complained of, but cannot enter into the merits of that complaint as to which the court does not possess the expertise to decide. That, India's National Policy has been clearly and unequivocally expressed by the legislature in the Atomic Energy Act. National and International policy of the country is to develop control and use of atomic energy for the welfare of the people and for other peaceful purposes. NPP being set up at Balasore as part of the National Policy which is discernible from the Preamble 15 16

AIR 1989 S.C. 1899. (1992) Supp. (1) S.C.C. 44 (para 14). Page | 4

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of the Act and Provisions contained therein. It is not for the Courts to determine whether a particular policy or a particular decision taken in fulfilment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of policy behind the Statute. Lord Macnaughten in Vacher & Sons v. London Society of Compositors17 has stated: "Some people think the policy of the Act unwise and even dangerous to the community. But a Judicial Tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter of a private judgement. The duty of the Court, and its only duty is to expand the language of the Act in accordance with the settled rules of construction. In CCSU v. Min18, it was held that it is not for the Courts to determine whether a particular policy or particular decision taken in fulfilment of that policy are fair. They are concerned only with the manner in which those decisions have been taken, if that manner is unfair, decision will be tainted with what Lord Diplock labels as procedural impropriety. This Court in M.P. Oil Extraction and Another v. State of M.P. and Ors19., held that unless the policy framed is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is invalid in constitutional or statutory, courts interference is not called for20. Therefore, it is most humbly submitted, when the setting up of the Nuclear Power Plant is justified from all angles, which in the instant case is being set up in the National Interest for supplying electricity to DRDO establishments to safeguard the sovereignty of the Country, such projects should not be interfered with considering the gravity of infiltration and security concerns of the Country, with porus borders. India has to race with other nations developing Nuclear Power, and co-operation of the citizens is required to finish such projects expeditiously. It is further prayed by the Respondents that, the Hon'ble Court may also be graciously be pleased to frame guidelines, which should prevent such unscrupulous and time consuming writs being filed under the hood of public interest litigation against projects which are solely in the national interest, and should be finished fast. This does not mean shutting of the doors, but merely defining the "locus standi" in such cases. Heavy costs as the Hon'ble Court may deem fit should be imposed, if Petitions are found to be replicas of other situations. 17

(1913) AC 107(118)HL. (1984) 3 All ER 935 (954) HL. 19 (1997) 7 SCC 592. 20 M/s Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635; Dhampur Sugar (Kashipur) ltd. v. State of Uttranchal and Ors., (2001) 3 SCC 635; Delhi Bar Association v. Union of India and Ors., (2008) 13 SCC 628. 18

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PRAYER Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is most humbly prayed that this Honorable Court may be pleased to:

TO HOLD 

That the writ petition under Article 32 of the Indian Constitution is not maintainable.



That the writ cannot be issued to Government of India on matters relating to defence.

MISCELLANEOUS



Any other relief that this Hon’ble Court may be pleased to grant in the interest of equity, justice and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR RESPONDENTS Sd.

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